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No Injustice in Shem Walker Delays

The following is an Op-Ed by Robert Reuland that appeared on the New York Times’ blog “The Local” on October 6, 2009. The article is available here.

If you didn’t know any better, you might believe the criminal justice system has something to do with justice. And it has — sometimes — in its infuriatingly scatter shot, inconsistent, drawn-out, deeply flawed, alarming imperfect, perfectly human way. More often than not, though, justice seems like an afterthought to the system. And, since we’re talking, what is justice anyway?

Consider Shem Walker, shot dead in front of his own home by an undercover cop on July 11, 12 weeks ago. Ask Walker’s family, his Fort Greene neighbors and Brooklyn activists, and they might tell you his death was murder or something like it. An act of racism, perhaps. Police brutality. Profiling. Somebody’s gotta pay.

Ask a cop, however, or ask someone from a different neighborhood, and Mr. Walker’s death was a tragedy. And, if Mr. Walker didn’t exactly get what he deserved, maybe he asked for some of it. But murder? Please.

The known facts are these. Shem Walker, an Army vet who did hard time for narcotics sales, mistook his assailant for what the undercover was pretending to be: a shady character hanging out on the stoop. When Mr. Walker tried to get him moving, a scuffle ensued. A kick. A grab for the gun. Walker dead.

What’s disturbing about the Walker case and recent others like it — all involving an unarmed black victim, a shooter cop, race politics, the city itself — is that opinion divides over largely undisputed facts. Like the Sean Bell and Amadou Diallo cases, both sides here seem to agree on what happened, and disagree, widely, on what those facts signify. Where one camp sees racism, the other sees a misunderstanding. Where one sees murder, the other sees self-defense. Everyone wants justice, but everyone’s got a different idea what that means.

Trouble is, as the song goes, “Nobody’s right if everybody’s wrong.” After all, is not justice something absolute? Something immutable and beautiful? How can justice for one be injustice for another?

There is, in theory, an arbiter of who’s right: the criminal justice system and its steward, the district attorney. In the Shem Walker case, no verdict has been rendered. The Brooklyn D.A. says the investigation is still “ongoing.” Some have suggested that this delay is a victory for the cops, that the D.A. is simply in a four corner offense, that justice delayed is justice denied.

I disagree. Even if the D.A. is biding his time, hoping the case will die a quiet death, why the surprise? The district attorney is an elected position; politics necessarily goes with the job. While the main function of the district attorney’s office is to prosecute crime, it would be naive to suggest that it does so without regard to public policy. When was the last time someone was prosecuted for adultery? It’s still on the books, Mr. Governor.

Most criminal cases do not implicate wider, policy concerns — which means they’ve gotten no media coverage and will be tried in an empty courtroom. On the other hand, high profile cases in Brooklyn receive special attention from D.A. Charles Hynes’ executive staff on the “19th Floor,” and often from Mr. Hynes himself.

There is nothing Grisham-esque about this; the 19th Floor is not a Star Chamber. Politics may inform prosecutorial decision-making without corrupting it. While Mr. Hynes and I fell out over my public comments on Brooklyn’s high homicide rate, as a prosecutor I was never asked to manipulate, manufacture or otherwise ignore evidence for the sake of political expediency.

Nor, contrary to popular opinion, are police hand-and-glove with prosecutors. While good relations with One Police Plaza are important, no district attorney will put his finger on the scales of justice for a cop who crosses the line. For that matter, neither would the NYPD.

And Mr. Hynes is, for the record, no racist. He made his bones prosecuting racists, and on the strength of his Howard Beach prosecutions 20 years ago became district attorney.

If anything, the undercover-shooter in the Walker case should be biting his nails. In both the Bell (Queens) and Diallo (Bronx) cases, charges were pursued against cops where evidence of real criminal conduct was slim, as their subsequent acquittals plainly showed. Few of those indicted, however, ever wore a badge again. The takeaway from these cases is that a cop’s career is not worth a fig once Al Sharpton & Co. gets their mojo working.

Brooklyn D.A. Hynes, who is politically unassailable and carries his Howard Beach rep, may be in a stronger position than his Queens and Bronx counterparts to resist the urge to throw a sop to the electorate. Speaking as a ex-prosecutor who only knows what he reads in the newspaper, I see no crime in the Walker case.

Nevertheless, even if Mr. Hynes takes the same view of the evidence (as a prosecutor) he may (as a politician) see some value in allowing time for the furor to die down so that when this conclusion is announced the public may receive it with more equanimity. If so, who could fault him? I, for one, cannot imagine trying to tread a line between race, politics and the law in New York City.